B-123798, JUL. 7, 1955

B-123798, JUL. 7, 1955

TO THE HONORABLE, THE SECRETARY OF HEALTH, EDUCATION AND WELFARE:

REFERENCE IS MADE TO A LETTER DATED APRIL 27, 1955, FROM THE ACTING SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REQUESTING A DECISION RELATIVE TO THE ASSESSMENT OF EXCESS COSTS OF TRANSPORTING HOUSEHOLD GOODS UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 9805, AS AMENDED, AGAINST AN EMPLOYEE INCIDENT TO A CHANGE OF PERMANENT DUTY POST FROM SAN FRANCISCO, CALIFORNIA, TO SAN JUAN, PUERTO RICO.

PAYMENTS FOR THE COSTS OF TRANSPORTING HIS HOUSEHOLD GOODS ARE STATED TO HAVE BEEN MADE AS FOLLOWS:

CHART

PAYEE SERVICE AMOUNT

LYNCH AND SONS DRAYAGE-HOURLY RATE $159.56

SHIPPERS SERVICE PACKING-1,371 CUBIC FEET 537.64

DODD WAREHOUSES DRAYAGE 10,000 POUNDS 1)

(APPROXIMATELY) 63.00

POPE AND TALBOT, INC. TRANSPORTATION

(1,371 CUBIC FEET) 963.13

SEIGMUND DRAYAGE DRAYAGE AND UNPACKING

(1,371 CUBIC FEET) 140.59

1) WEIGHT OF 10,000 POUNDS IS SHOWN ON INVOICE OF DODD WAREHOUSES, HOWEVER, POPE AND TALBOT, INC., SHOW WEIGHT OF 10,369 POUNDS ON THEIR BILL WHICH IS DEEMED CORRECT.

SINCE SOME OF THE ABOVE CHARGES AGAINST THE GOVERNMENT WERE COMPUTED ON THE BASIS OF WEIGHT OF THE HOUSEHOLD GOODS WHILE OTHERS WERE COMPUTED ON A VOLUME BASIS, THE ACTING SECRETARY IS IN DOUBT AS TO THE CORRECT METHOD FOR COMPUTING THE AMOUNT OF EXCESS COSTS WHICH ARE PROPERLY ASSESSABLE AGAINST AND COLLECTIBLE FROM THE EMPLOYEE UNDER THE PROVISIONS OF SECTIONS 17 AND 22 OF THE EXECUTIVE ORDER. ACCORDINGLY, WE ARE ASKED TO RENDER A DECISION ON THE FOLLOWING QUESTIONS:

1. WHAT IS THE CORRECT COMPUTATION OF EXCESS COSTS IN THE CASE CITED ABOVE?

2. WOULD THE ANSWER BE THE SAME IN CASES WHERE THE SHIPMENT HAS ACTUALLY BEEN TRANSPORTED OVER A ROUTE WHICH NECESSARILY INVOLVES TRANSPORTATION CHARGES (OTHER THAN FOR LOCAL DRAYAGE) BASED ON WEIGHT OVER PART OF THE DISTANCE AND ON MEASUREMENTS OIVER ANOTHER PART OF THE DISTANCE?

SECTION 1, PUBLIC LAW 600, 60 STAT. 806, AND EXECUTIVE ORDER NO. 9805, PROMULGATED THEREUNDER, GOVERN THE ALLOWANCE AND PAYMENT FROM GOVERNMENT FUNDS FOR EXPENSES OF TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS OF CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY. BOTH THE LAW AND THE EXECUTIVE ORDER (SECTION 4) LIMIT THE WEIGHT OF THE GOODS AND EFFECTS THAT MAY BE TRANSPORTED AT GOVERNMENT EXPENSE TO 7,000 POUNDS OF UNCRATED OR 8,750 POUNDS IF CRATED OR THE EQUIVALENT THEREOF WHEN THE TRANSPORTATION CHARGES ARE BASED ON CUBIC MEASUREMENT. THE PERTINENT PORTIONS OF TITLE III OF THE EXECUTIVE ORDER, AS AMENDED BY EXECUTIVE ORDER NO. 10196, GOVERNING THE TRANSPORTATION OF SAID PROPERTY TO OR FROM POINTS OUTSIDE THE CONTINENTAL UNITED STATES, ARE AS FOLLOWS:

"SEC. 17. MAXIMUM ALLOWANCE FOR TRANSPORTATION.

(A) WEIGHT. THE ACTUAL COSTS OF TRANSPORTATION OF THE HOUSEHOLD GOODS AND PERSONAL EFFECTS OF THE EMPLOYEE, NOT IN EXCESS OF 7,000 POUNDS NET, AND OF THE PACKING, CRATES, BOXES, LIFT VANS, OR OTHER TEMPORARY CONTAINERS REQUIRED FOR THE SHIPMENT, SHALL BE ALLOWED IN THE CASE OF TRANSFERS TO OR FROM POINTS OUTSIDE THE CONTINENTAL UNITED STATES: * * * THUS, TRANSPORTATION SHALL BE ALLOWED AT GOVERNMENT EXPENSE FOR PROPERTY WHEN PACKED, CRATED, BOXED, OR PLACED IN LIFT VANS FOR SHIPMENT, WITHIN THE FOLLOWING MAXIMUM WEIGHTS:

TABLE

POUNDS

EMPLOYEES HAVING IMMEDIATE FAMILY:

SHIPMENT INVOLVING TRANSPORTATION

BY VESSEL OVER ALL OR PART OF

ROUTE * * * 8,750

"/B) VOLUME. WHERE CHARGES FOR TRANSPORTATION ARE COMPUTED ON A BASIS OF MEASUREMENT RATHER THAN WEIGHT, CHARGES WILL BE ALLOWED REGARDLESS OF WEIGHT FOR NOT TO EXCEED 25 MEASUREMENT TONS OF FORTY CUBIC FEET EACH INCLUSIVE OF PACKING, CRATING, AND LIFT VANS: * * *

"/C) WEIGHT AND VOLUME ON SAME SHIPMENT. WHEN SHIPMENT MUST BE MADE OVER SUCH A ROUTE THAT THE TRANSPORTATION NECESSARILY INVOLVES CHARGES BASED UPON WEIGHT OVER PART OF THE DISTANCE AND UPON MEASUREMENT OVER ANOTHER PART OF THE DISTANCE, THE FOLLOWING CONDITIONS SHALL APPLY: (1) IF THE WEIGHT DOES NOT EXCEED THE LIMITATIONS PRESCRIBED IN SUBSECTION (A) PAYMENT SHALL BE ALLOWED FOR ACTUAL CHARGES OVER THE ENTIRE DISTANCE REGARDLESS OF WHETHER THE MEASUREMENT IS IN EXCESS OF THE LIMITATIONS IMPOSED BY SUBSECTION (B); (2) IF BOTH WEIGHT AND MEASUREMENT ARE IN EXCESS OF THE PRESCRIBED LIMITATIONS PAYMENT SHALL NOT BE ALLOWED FOR THE EXCESS BY WEIGHT OVER THAT PART OF THE DISTANCE WHERE CHARGES ARE BASED ON WEIGHT, OR FOR THE EXCESS BY MEASUREMENT OVER THAT PART OF THE DISTANCE WHERE CHARGES ARE BASED ON MEASUREMENT.

"SEC. 18. ALLOWANCES FOR PACKING, CRATING, UNPACKING, AND UNCRATING. THE ACTUAL COSTS OF PACKING, CRATING, UNPACKING, AND UNCRATING (NOT TO EXCEED THE AUTHORIZED WEIGHT) SHALL BE ALLOWED.

"SEC. 19. ALLOWANCES FOR DRAYAGE. IN CASE DOOR-TO-DOOR COMMON CARRIER RATES ARE NOT APPLICABLE, THE ACTUAL COSTS OF DRAYAGE (NOT TO EXCEED THE AUTHORIZED WEIGHT) TO AND FROM THE COMMON CARRIER SHALL BE ALLOWED.

"SEC. 22. USE OF GOVERNMENT BILL OF LADING OR PURCHASE ORDER. SHIPMENT SHALL BE MADE ON GOVERNMENT BILL OF LADING OR PURCHASE ORDER WHENEVER POSSIBLE; OTHERWISE REIMBURSEMENT SHALL BE MADE TO THE EMPLOYEE FOR TRANSPORTATION EXPENSES ACTUALLY AND NECESSARILY INCURRED WITHIN THE LIMITATIONS PRESCRIBED BY THESE REGULATIONS. IF PROPERTY IN EXCESS OF THE AMOUNT ALLOWABLE UNDER THESE REGULATIONS IS SHIPPED ON A GOVERNMENT BILL OF LADING OR PURCHASE ORDER, THE EMPLOYEE SHALL IMMEDIATELY UPON COMPLETION OF THE SHIPMENT PAY TO THE PROPER OFFICER OF THE DEPARTMENT OR ESTABLISHMENT AN AMOUNT EQUAL TO THE CHARGE FOR THE TRANSPORTATION OF SUCH EXCESS COMPUTED FROM THE TOTAL CHARGES ACCORDING TO THE RATIO OF EXCESS WEIGHT TO THE TOTAL WEIGHT OF THE SHIPMENT.'

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

THERE REMAINS FOR DISPOSITION ONLY A DETERMINATION OF THE PORTION OF THE COST OF OCEAN TRANSPORTATION WHICH IS CHARGEABLE TO THE EMPLOYEE AS EXCESS COST. SINCE THE CHARGES FOR SUCH TRANSPORTATION WERE COMPUTED ON THE BASIS OF MEASUREMENT RATHER THAN WEIGHT, SECTION 17 (B) OF EXECUTIVE ORDER NO. 10196 DIRECTS THAT SUCH CHARGES BE ALLOWED, REGARDLESS OF WEIGHT, FOR NOT TO EXCEED 1,000 CUBIC FEET. IN EFFECT, THIS SUBSECTION ESTABLISHED A NEW METHOD FOR DETERMINING THE EXTENT OF THE GOVERNMENT'S LIABILITY FOR THE COST OF TRANSPORTATION, COMPUTED ON A VOLUME BASES. USE OF ANY OTHER BASIS FOR COMPUTATION OF EXCESS COSTS CHARGEABLE TO THE EMPLOYEE UNDER SECTION 22 MIGHT RESULT IN A GIVEN CASE IN A CHARGE AGAINST THE GOVERNMENT IN EXCESS OF THE COMPUTATION ON A VOLUME BASIS. MOREOVER, SECTION 22 DIRECTS THAT SHIPMENTS OF GOODS AND EFFECTS TO OR FROM POINTS OUTSIDE THE UNITED STATES "SHALL BE MADE ON GOVERNMENT BILL OF LADING OR PURCHASE ORDER WHENEVER POSSIBLE.' IN THE CIRCUMSTANCES, IT IS OUR VIEW THAT THE EXCESS COSTS UNDER SECTION 22 MUST ALSO BE COMPUTED ON A VOLUME BASIS, NOTWITHSTANDING THE FAILURE OF THE EXECUTIVE ORDER SPECIFICALLY TO SO STATE. THE CHARGE FOR TRANSPORTATION BEING $963.13 IN THE CASE PRESENTED, WHICH WAS COMPUTED ON THE BASIS OF 1,371 CUBIC FEET, REPRESENTING 371 CUBIC FEET IN EXCESS OF THE VOLUME PRESCRIBED BY SECTION 17 (B) OF EXECUTIVE ORDER NO. 10196, THE EXCESS COST OF TRANSPORTATION CHARGEABLE TO THE EMPLOYEE IS 371/1371 OF $963.13, OR $260.62. THAT EXCESS, WHEN ADDED TO THE SUM OF $140.65 COLLECTIBLE FOR PACKING, CRATING, ETC., RESULTS IN A TOTAL INDEBTEDNESS OF $401.27. THE FIRST QUESTION IS ANSWERED ACCORDINGLY.

WITH RESPECT TO THE HYPOTHETICAL SITUATION PRESENTED BY THE SECOND QUESTION, IN WHICH A PORTION OF THE TRANSPORTATION CHARGES WOULD BE COMPUTED ON A WEIGHT BASIS AND THE REMAINDER ON A VOLUME BASIS WHILE OTHER CHARGES REMAINED IDENTICAL, THE METHOD FOR COMPUTING EXCESS DRAYAGE, PACKING, CRATING, UNPACKING, AND UNCRATING CHARGES WOULD BE THE SAME AS OUTLINED ABOVE. THE METHOD FOR COMPUTING EXCESS TRANSPORTATION COSTS WHERE A PORTION OF THE TOTAL CHARGES ARE COMPUTED ON A WEIGHT BASIS AND THE REMAINDER ON A VOLUME BASIS MUST BE GOVERNED BY THE PROVISIONS OF SECTION 17 (C) (2) OF EXECUTIVE ORDER NO. 10196. THUS, WHERE BOTH THE WEIGHT AND VOLUME OF THE SHIPMENT EXCEED THE PRESCRIBED LIMITATIONS, THE EXCESS COST CHARGEABLE TO THE EMPLOYEE FOR THAT PORTION OF THE TRANSPORTATION FOR WHICH CHARGES ARE COMPUTED ON A WEIGHT BASIS MUST ALSO BE COMPUTED ON SUCH BASIS, AND THE EXCESS COSTS FOR THAT PORTION ON WHICH CHARGES ARE COMPUTED ON A VOLUME BASIS MUST BE COMPUTED ON A VOLUME BASIS.